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The Squalid 14th Amendmentby Gene Healy

SEC. 1. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.

SEC. 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article. – Fourteenth Amendment
to the US Constitution

Political decentralization and individual liberty:
the two are intertwined, but the former doesn't guarantee the latter. As
Americans discover every day, the government that's closest to you is often
in the best position to put the screws to you. How should libertarian political
theory deal with the problem of oppression by local sovereigns? In the
American context, this question translates to: What should libertarians
think of the Fourteenth Amendment?

It's a question without an easy answer. Classical liberals
of good faith have found themselves on either side of the issue. Thus,
Lord Acton, following the Confederacy's defeat, wrote to Robert E. Lee:
"I saw in States' Rights the only availing check upon the absolutism of
the sovereign will.... Therefore I deemed that you were fighting the battles
of our liberty, our progress, and our civilization." But by the late 20th
century, libertarians have come full circle on the question of states'
rights and the Fourteenth Amendment. Today, the libertarian orthodoxy holds
that the Fourteenth Amendment perfected the Framers' design, fulfilling
the promise of the Declaration of Independence. Further, the promoters
of the new orthodoxy urge that the amendment be given robust application
against the states, in order to secure our natural rights to life, liberty
and property.

On this question, no one is more orthodox than Roger
Pilon, Director of the Cato Institute's Center for Constitutional Studies.
In him, Cato has an able advocate, one who provides a valuable counterweight
to a New Right jurisprudence that overvalues majoritarianism and views
the judicial branch as the gravest threat to our liberties. Unfortunately,
Pilon's case for the Fourteenth Amendment is deeply flawed. His case for
the political legitimacy of the amendment requires him to ignore the circumstances
of its inception; and his case for the amendment's efficacy as a means
of securing individual liberty depends on a Panglossian view of judges
and federal supremacy. The defects in Pilon's arguments should prompt libertarians
to reexamine the new orthodoxy on the Fourteenth Amendment.

Ratification "at the Point of the Bayonet"Throughout Roger Pilon's published work, the watchword
is "consent." We come out of the state of nature, so the myth runs, the
better to secure our natural rights. The government we institute derives
its just powers from the consent of the governed. "That, and only that,
is the source of their legitimacy," Pilon tells us in Economic Liberties
and the Judiciary. Though Pilon concedes that unanimous consent is a fiction,
he suggests that the Framers did a tolerably good job in requiring broad
consent for the adoption of our Constitution and in the procedures for
its amendment. In a recent Cato Institute Policy Analysis paper, "Reviving
the Privileges or Immunities Clause," Pilon and coauthor Kimberly C. Shankman
write: "the supermajoritarian consent that was required for constitutional
ratification and amendment...served, as far as practically possible, to
legitimately institute government, authorize its powers, and change those
powers."

Quite properly, given his emphasis on consent and legitimacy,
Pilon has repeatedly excoriated the political branches for arrogating to
themselves powers that the people never delegated through Article V's amendment
process. In their Cato paper, Pilon and Shankman apply similar scorn to
the judicial branch for ignoring the Fourteenth Amendment. They recount
the story of the 1873 Slaughterhouse Cases, which "effectively eviscerated"
that amendment's Privileges or Immunities Clause. The authors spare no
venom in decrying "judicial resistance to popular will," which thwarted
"the course that...the American people had meant the Court to follow."

But somewhere along the way, the true history of the
Fourteenth Amendment's adoption has disappeared down a memory hole. When
one reviews that history, it becomes clear why Pilon and Shankman prefer
to discuss the amendment in the abstract, antiseptic terms of social contract
theory. An "immaculate conception" account of ratification suits their
argument better: the real story's a little too dirty for the kids.

We return to 1865. As the legally reconstituted Southern
states were busy ratifying the anti-slavery Thirteenth Amendment, the Republican-dominated
Congress refused to seat Southern representatives and Senators. This allowed
the remaining, rump Congress to propose the Fourteenth Amendment, consistent
with Article V's requirement of a 2/3 majority for sending a proposed amendment
to the states. Never mind that Congress also clearly violated that Article's
provision that "no State, without its Consent, shall be deprived of its
equal suffrage in the Senate."

Though the Northern states ratified the Fourteenth
Amendment, it was decisively rejected by the Southern and border states,
failing to secure the 3/4 of the states necessary for ratification under
Article V. The Radical Republicans responded with the Reconstruction Act
of 1867, which virtually expelled the Southern states from the Union and
placed them under martial law. To end military rule, the Southern states
were required to ratify the Fourteenth Amendment. As one Republican described
the situation: "the people of the South have rejected the constitutional
amendment and therefore we will march upon them and force them to adopt
it at the point of the bayonet."

President Andrew Johnson saw the Reconstruction Act
as "absolute despotism," a "bill of attainder against 9,000,000 people."
In his veto message, he stated that "such a power ha[d] not been wielded
by any Monarch in England for more than five hundred years." Sounding for
all the world like Roger Pilon, Johnson asked, "Have we the power to establish
and carry into execution a measure like this?" and answered, "Certainly
not, if we derive our authority from the Constitution and if we are bound
by the limitations which it imposes."

The rump Republican Congress overrode Johnson's veto
and enacted statutes that shrank both the Supreme Court's appellate jurisdiction
and the Court itself – just in case the judicial branch got any funny ideas
of its own about constitutionalism. Jackboot on its neck, the South ratified,
but not before New Jersey and Ohio, aghast at Republican tyranny, rescinded
their previous ratifications of the mendment. Even with the fictional consent
of the Southern states, the republicans needed New Jersey and Ohio to put
the amendment over the top. No matter; by joint resolution, Congress declared
the amendment valid. Thus it – you'll excuse the phrasing-- "passed into
law."

The squalid history of the Fourteenth Amendment poses
serious problems for Roger Pilon. Pilon's critique of the New Deal has
always included withering scorn for FDR's extraconstitutional thuggery,
in the form of the infamous Court-packing scheme. As Pilon tells the story,
FDR muscled the Court into approving radical constitutional changes that
could be enacted only by means of Article V's amendment process. The people
never delegated to the federal government the powers it took for itself
during the New Deal. But neither did they delegate to the federal goverment
the powers it seized in 1868. Any New Deal aficionado who knows his history
is entitled to wonder about Pilon's selective indignation: does he invoke
the principles of consent and legitimacy only against constitutional changes
he dislikes?

The Fourteenth Amendment in Theory and PracticeAncient history, you say. The Fourteenth Amendment
is in everybody's Pocket Constitution, and it's not going anywhere. Fair
enough, but the above account shows that the amendment cannot be justified
with a bedtime story about Lockean first principles. If libertarians are
to embrace the Fourteenth Amendment, they'll have to find pragmatic reasons
to do so. The argument must be that the amendment has been, and will continue
to be, an effective weapon in the struggle for individual liberty. But
even here, the case is not nearly as strong as Roger Pilon believes it
to be.

What is strong is Pilon's account of the original understanding
of the Fourteenth Amendment, and particularly the amendment's "Privileges
or Immunities" clause. As he recounts in the Cato Handbook for the 106th
Congress and elsewhere, the Civil Rights Act of 1866, which the amendment
was designed to constitutionalize, gives us a good idea of the kind of
privileges and immunities the drafters wanted to secure. The rights that
act protected from state infringement were "basic common law rights," such
as "the right to make and enforce contracts...to purchase, lease, sell,
hold, and convey real personal property." As Pilon has it, the clause protects
a substantive core of natural rights from state infringement. Thus, Lochner
v. New York, the much-maligned 1905 case in which the Supreme Court struck
down a New York statute setting maximum hours for bakery workers, was closer
to the original understanding of the Fourteenth Amendment than much that
has come since. [Though with the Privileges or Immunities Clause 'effectively
eviscerated, the Lochner Court was forced to rest its decision on the amendment's
Due Process Clause, which, as Pilon notes, provided a weaker foundation.]

Properly understood, then, the amendment doesn't give
judges "power"; rather, it enlarges the sphere of the judicial "veto,"
allowing judges to strike down state and local laws that infringe on natural
rights. The Slaughterhouse majority warned that a broad interpretation
of the amendment would make the judiciary "a perpetual censor upon all
legislation of the States." To which a good libertarian can answer, "So
what?" One could riffle through most state and municipal codes, tearing
out hundreds of pages at random, and leave the law in better shape than
one found it. As Pilon argues in a 1993 Notre Dame Law Review article,
it is the Court's job to be a "perpetual censor," to ensure that legislative
enactments "both proceed from the authority granted them and are consistent
with rights restraining them." The Fourteenth Amendment merely provides
"an additional layer of protection" for rights.

Threats from the Least Dangerous BranchBut in practice, the Fourteenth Amendment has often
operated as a grant of legislative and executive power to judges. And that
power has been used to violate the very rights it was meant to secure.

This is nowhere clearer than in the line of cases thought
to represent the Fourteenth Amendment's finest hour: Brown v. Board of
Education and its progeny. Brown has iconic status on the Left and much
of the Right, because many commentators see it as ending de jure segregation
and furthering the first Justice Harlan's noble ideal of a "color-blind"
Constitution.

But this is only part of Brown's story. Equality before
the law shifted effortlessly into forced equality of outcome in the space
of a few short years. State resistance, massive or otherwise, was useless.
In North Carolina Board of Education v. Swann, the Court struck down a
state statute providing that no student would be compelled to attend any
school for the purpose of improving racial balance in the schools. In Washington
v. Seattle School District, the Court did the same with a statewide voter
initiative preventing mandatory busing for purposes of integration. In
U.S. v. Yonkers, a federal judge held the Yonkers city government in contempt,
ordering it to integrate its schools by building scattersite public housing
in predominantly white areas. This line of cases reached its coercive nadir
in Missouri v. Jenkins, when the Supreme Court held that, to further integration,
a federal judge could order a local government to increase property taxes,
even though the increase was barred by the state constitution.

"Well, it serves you right for setting up government
schools in the first place," say we libertarians. But wait. Faced with
a desegregation order in the early '60s, Prince Edward County, Virginia,
refused to assess school taxes and instead shut down its public education
system. In 1964's Griffin v. County School Board, the Court ordered Prince
Edward County to levy the taxes and reopen its schools. In 1996, when the
Court ended male-only admissions at the Virginia Military Institute, one
of the obstacles to VMI's privatization was a possible Griffin-based challenge
from the Justice Department.

Thus, in the wake of Brown, federal courts enforcing
the Fourteenth Amendment have seized vast coercive powers, state resistance
to taxation and social engineering notwithstanding. To what benefit? None,
actually. As the editors of a leading--and, it should go without saying,
leftist--constitutional law text admit, there is "no proof . . . that [integration]has
aided blacks in any demonstrable fashion." (Stone, Seidman, Sunstein, and
Tushnet; Constitutional Law; 2d Ed. Little, Brown, and Co.; 1991 pps 530-31)
It's true that in recent years, the federal courts have cooled somewhat
to desegregation lawsuits. It's also true that, thanks to Missouri v. Jenkins,
we're no longer protected from taxation by unelected, life- tenured federal
judges. The precedent remains on the books, waiting for the next egalitarian
jihad. In its 1868 Resolution deratifying the Fourteenth Amendment, New
Jersey charged that the amendment would work a radical "enlarge[ment] of
the judicial power." In fact, New Jersey suspected that the amendment itself
was "made vague for the purpose of facilitating encroachment on the lives,
liberties, and property of the people." Maybe the Garden State was on to
something.

If You Liked the Commerce Power. . .In addition to the de facto grant of legislative and
executive power to judges, the Fourteenth Amendment includes a de jure
grant of power to Congress. Section Five of the amendment reads: "The Congress
shall have power to enforce, by appropriate legislation, the provisions
of this article." Roger Pilon argues that Congress should routinely invoke
Section Five to strike down state violations of individual rights. In the
Cato Handbook for the 105th Congress, he declares that Congress has "often
failed in its responsibility under the Fourteenth Amendment to police the
states. Here is an area where federal regulation has been, if anything,
too restrained."

It's unlikely that Pilon fully recognizes the implications
of this position. In the passage immediately preceding the above, he rails
against burgeoning federalization of crimes, which has taken place because
of willful misinterpretation of Congress's authority to regulate interstate
commerce. But if Congress can step in under the Fourteenth Amendment to
secure basic individual rights when states "fail to secure them against
private violations," as Pilon assures us Congress can, then Pilon has opened
the door to a vast federal police power. Say goodbye to the tentative restriction
of federal authority provided when the Court struck down the Gun Free School
Zones Act in U.S. v. Lopez. Does carjacking violate our rights to liberty
and property? There's your authority for the Federal Carjacking Statute.
Do outlier states provide women with insufficient protection against domestic
abuse? Quite possibly, so make way for the Violence against Women Act.
If you like the "substantial effects" test for invocation of the Commerce
Power, then wait until you see what Congress can do with matters that "substantially
affect" liberty. [In fact, the Violence Against Women Act VAWA) is based
in part on just such a theory of Congress's power under Section 5. Several
district courts have upheld the statute. But on March 5, the Fourth Circuit
Court of Appeals emphatically rejected VAWA, and with it the theory that
Congress can use the Fourteenth Amendment to federalize crimes when, as
Roger Pilon puts it, "State measures prove inadequate." See Brzonkala v.
Virginia Polytechnic 1999 WL 111891 pps 40-55.]

In the midst of the recent furor over black church
burnings, Congress passed the Church Arson Prevention Act. In his Cato
Handbook chapter and a 1996 Washington Post op-ed, Pilon chides Congress
for relying on the Commerce Clause in enacting the anti-arson statute.
Instead, he tells us, Congress should have invoked its authority under
Section Five of the Fourteenth Amendment. "If the facts had warranted it,"
he writes, Congress would have had "ample authority" under Section Five
to pass the Church Arson Prevention Act. Reading between the lines, I surmise
that he doubts that the facts warranted it. Indeed, there's every reason
to believe that they didn't, as research by Michael Fumento and others
later suggested. But we operate with a real-world Congress, susceptible
to political pressure, and a real-world judiciary reluctant to make what
it sees as political judgments. If the only check against federalization
of crime is to be found in the judiciary's willingness to overturn congressional
findings of fact, then that's no check at all.

To go before Congress and the readership of the Washington
Post and offer up an underused federal power is to stride onto enemy turf
and proclaim, "Forget about the pipe you've been beating us with. Try this
chain." The logic of public choice applies to Section Five as well as it
does to any other enumerated power. The constituency for commonlaw liberties
is broad and diffuse; the constitutuencies for federal coercion are discrete
and concentrated. They'll win the fight.

They're already winning. Consider what Congress actually
does with Section Five of the Fourteenth Amendment. That provision is most
often invoked in the service of modern notions of equality, providing private
rights of action against discrimination. Among the statutes upheld under
Section Five are the speech-restrictive Freedom of Access to (Abortion)
Clinic Entrances Act, the Americans with Disabilities Act, the sex discrimination
provisions of Title IX of the Civil Rights Act, and the Age Discrimination
in Employment Act. With regard to the latter three, Section Five allows
Congress to abrogate state governments' Eleventh Amendment immunity from
suit in federal courts. Congress and the courts have used Section Five
to allow extortionate lawsuits against state governments, agencies, and
schools.

It's true that Congress generally does not invoke Section
Five when it regulates private individuals. This is the case for two reasons:
1) Congress already has the power to do almost anything it wants under
current Commerce Clause jurisprudence; and 2) current Section Five jurisprudence
limits Congress to regulating "state action." But this can change. The
"state action" doctrine has proved a rather porous barrier to Congress's
power to regulate private actors. The first Justice Harlan, whom Pilon
and Shankman seem to view as some kind of Lockean fellow traveller, opposed
the doctrine as an unreasonable limitation on Congress's power to regulate
businesspeople; so too did six members of the Warren Court at one point
in the 1960s. Though the state action doctrine has remained nominally intact,
the Court has found "state action" in situations such as enforcement of
private, racially restrictive covenants; enforcement of racially neutral
trespass statutes against lunch counter sit-ins; and racial discrimination
by private businessmen leasing property from the state. The doctrine is
eminently capable of giving way to a general regulatory power. If the Supreme
Court gets serious about restraining congressional abuses of the Commerce
Power, look for Congress to use Section Five to reenact and extend modern
antidiscrimination laws. And look for the Court to cave.

Pilon recognizes that the Fourteenth Amendment carries
with it a potential for abuse; but his solution is profoundly unsatisfying.
In recent Congressional testimony, he stated that "the Fourteenth Amendment
has itself been misused, both by Congress and by the courts. But that is
no reason to ignore it. Rather, it is a reason to correct the misuses."
According to Pilon, the answer to bad judging is better judges and better
judging. To get where we want to go, we need to appoint judges who understand
the Constitution and "the classical theory of rights" that stands behind
it. Judges need to get in touch with the "Higher Law background" of American
constitutionalism.

Well, I've spent the past three years in law school
surrounded by future federal judges. Here a passion for levelling infects
the classroom discussion, and the idea of natural rights has the intellectual
status of phrenology and creation science. Students see in the Fourteenth
Amendment an irresistible engine for reshaping society along egalitarian
lines. They do not care what the amendment actually means. In this context,
Pilon's solution sounds positively Lennonist: "Imagine all the judges/Applyin'
Higher Law..."

Dreams and NightmaresI may say that Roger Pilon's a dreamer, but I don't
have a more practical answer. Nor have I been entirely fair to the Fourteenth
Amendment. In the areas of free speech and criminal procedure, for example,
the amendment has been the source of some of the Court's proudest moments,
some of the greatest vindications of liberty in American constitutional
law. Given a regime of federal supremacy, perhaps the Fourteenth Amendment
can help us check local tyranny in some areas.

But libertarians, of all people, should recognize that
a Congress and a Court that are powerful enough to give us everything we
want are powerful enough to take it all away. Individual liberty competes
with the mirage of social justice in the hearts and minds of the governing
elite. The Fourteenth Amendment can further the forcible enactment of either
vision.

Libertarians are reluctant to embrace "states' rights,"
an admittedly unfortunate term. But the independence of the states once
served as a check on coercive social experimentation. From this perspective,
Justice Brandeis's rationale for federalism, that individual states can
serve as "laboratories of democracy," gets it precisely backwards. The
point of decentralization is that the smaller the laboratory, the easier
it is for us rats to escape the Skinner Box.

That battle was perhaps lost after Appomatox, in what
Roger Pilon grotesquely mischaracterizes as a "war to secure liberty."
I don't expect Pilon to consign himself to irrelevancy by advocating the
dissolution of the Union. But I would like him to temper his fervor for
the Fourteenth Amendment with a recognition of the difficulties posed by
federal supremacy. And I'd like libertarian followers of the new orthodoxy
to consider whether Pilon's idea, that Congress and the Court can serve
as guarantors of our liberty, amounts to the fond hope that the wolf at
our door can be housebroken.

Our common goal is the night-watchman state. If ever
again we approach that ideal, will it be with the help of a federal government
that is the benevolent master of all it surveys? Or will we get there by
way of radical decentralization with little or no federal oversight? These
may be loaded questions, but they ought at least to be seriously considered.
It's my view that if we can ever rid ourselves of federal supremacy--of
what Lord Acton called "the absolutism of the sovereign will"--losing the
Fourteenth Amendment will be no sacrifice at all.

If the dream of independent states seems absurdly unrealistic,
then consider a nightmare. Consider Professor Catharine A. MacKinnon's
Fourteenth Amendment. In her book Only Words, MacKinnon tells us that the
First and the Fourteenth Amendments conflict. She writes that "the Reconstruction
Amendments...move[d] the ground under expressive freedom, setting new limits
and mandating new extensions, perhaps even demanding reconstruction of
the speech right itself." When this is properly understood, the state will
be able to censor the speech of "dominant" classes, and forcibly reconstruct
society to ensure "equal access to speech." Indeed, "the state will have
as great a role in providing relief from injury to equality through speech
and in giving equal access to speech as it now has in disciplining its
power to intervene in that speech that manages to get itself expressed."
Those who consider MacKinnon's words the irrelevant musings of a tenured
law professor are unfamiliar with her successes in the area of sexual harassment
law, and unfamiliar with the cachet her ideas have in the legal academy.
Given federal supremacy and the vast powers the Fourteenth Amendment confers
on Congress and the courts, it matters little whether Roger Pilon is right
about the amendment's original meaning. In the fight between Pilon and
MacKinnon, on the battleground of American legal culture, I root for Pilon.
But as a betting man, I'd place my chips on MacKinnon.

Gene Healy is a recent graduate of the University of
Chicago Law School. This article was first published in the August 1999
issue of Liberty Magazine.

FAIR USE NOTICE:This site contains copyrighted material the use
of which has not always been specifically authorized by thecopyright owner. We are making such material
available in our efforts to advance understanding of environmental, political,
humanrights, economic, democracy, scientific, and
social justice issues, etc. We believe this constitutes a 'fair use' of
any such copyrightedmaterial as provided for in section 107 of the
US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material
onthis site is distributed without profit to those
who have expressed a prior interest in receiving the included information
for researchand educational purposes. For more information
go to: http://www.law.cornell.edu/uscode/17/107.shtml.
If you wish to usecopyrighted material from this site for purposes
of your own that go beyond 'fair use', you must obtain permissionfrom the copyright owner.